Mckarren v. Boston & N. St. Ry. Co.

• Decision Date: 27 February 1907
• Citation: 194 Mass. 179,80 N.E. 477
• Parties: McKARREN v. BOSTON & N. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 179

80 N.E. 477

McKARREN v. BOSTON & N. ST. RY. CO.

Supreme Judicial Court of Massachusetts

February 27, 1907

COUNSEL

S. A. Fuller and Linville H. Wardwell, for plaintiff.

Henry F. Hurlburt and Charles M. Davenport, for defendant.

OPINION

BRALEY J.

During the testimony of the physician who attended the plaintiff, in describing the nature and extent of the enlargement of a portion of the vertabrae of her spine, photographs of this portion of the back were introduced, and used by him as illustrations. While the photographer was not called, the witness, whose medical qualifications were not questioned testified that the photographs were taken in his presence and under his direction, and upon admission they must be considered as forming a part of his evidence. Alberti v New York, Lake Erie & Western R. R. Co., 118 N.Y. 77 88, 23 N.E. 35, 6 L. R. A. 765. The competency of such evidence if relevant, whether consisting of a model, diagram, map, plan, picture or photograph, is established, and is admitted for the purpose of giving to the jury a representation of the object or subject concerning which the inquiry is made, and to enable them better to understand the issues on trial. Blair v. Pelham, 118 Mass. 420, 421. Before admission, however, there must be a verification of the accuracy of the representation, and this is a preliminary inquiry to be made by the presiding judge whose decision is final. Clapp v. Norton, 106 Mass. 33; Com. v. Coe, 115 Mass. 487; Walker v. Curtis, 116 Mass. 98; Blair v. Pelham, ubi supra; Verran v. Baird, 150 Mass. 141, 22 N.E. 630; Farrell v. Weitz, 160 Mass. 288, 35 N.E. 783; Gilbert v. West End Street Ry. Co., 160 Mass. 403, 36 N.E. 60; Com. v. Robertson, 162 Mass. 90, 38 N.E. 25; Van Houten v. Morse, 162 Mass. 414, 422, 38 N.E. 705, 26 L. R. A. 430, 44 Am. St. Rep. 373; Harris v. Quincy, 171 Mass. 472, 473, 50 N.E. 1042;; Carey v. Hubbardston, 172 Mass. 106, 51 N.E. 521; Beals v. Brookline, 174 Mass. 1, 18, 54 N.E. 339; Com. v. Morgan, 159 Mass. 375, 378, 34 N.E. 458; Com. v. Fielding, 184 Mass. 484, 69 N.E. 216; State v. Cook, 75 Conn. 267, 53 A. 589. The defendant places great reliance upon Cunningham v. Fair Haven & Westville R. R. Co., 72 Conn. 244, 43 A. 1047, as an authority establishing a different rule, but after discussing the weight to be given such a finding the court expressly say: 'We are not now called upon to determine the legal correctness of a finding of this kind, or whether it can be reviewed. The question presented by the record is whether it was error to admit this photograph without any evidence of its accuracy.' The defendant contends that a higher degree of verification was necessary and should have been required than when the representation describes inanimate objects, as the accuracy of the reproduction of the animate human form varies according to the position and adjustment of the camera, the skill of the artist, and condition of the atmosphere. It is undoubtedly true that the photographer may produce a picture which is misleading when compared with the subject represented, but so can the civil or mechanical engineer by his plan, drawing, or model made by hand, and while such misrepresentation may result from lack of professional skill, or proper adjustment of the photographic apparatus, it also may be the deliberate product of the most skillful exercise of...